(dissenting).
I respectfully dissent.
In Heyde v. State Securities, 63 N.M. 395, 399, 320 P.2d 747, 750 (1958) the court said:
In any case substantial justice requires that we lift the veil and take a peek.
First, on June 12, 1972, the New Mexico Board of Pharmacy gave notice to The Albuquerque Journal, a newspaper of general circulation in the State, that a public hearing would be held July 19, 1972. The notice stated that “The purpose of the hearing will be the consideration of proposed regulations and amendments to and revisions of existing regulations set forth below :”
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Chapter 23, Laws of 1967 as amended Drug and Cosmetic Act: Article 9, Section 602.
Chapter 29, Laws of 1969 as amended, Pharmacy Act: Article 9, Section 602. [Emphasis added].
The plaintiffs, by notice of appeal, in addition to Article 9, Section 602, challenged the adoption and filing of Article 9, Section 600, and Article 12, Section 608. These two articles were not set forth in the notice. The record on appeal does not disclose whether the articles and section numbers were proposed regulations or amendments to and revisions of existing regulations.
On July 18, 1972, Mr. Brito, the chairman of the public hearing, announced:
The purpose of this meeting today is to provide an opportunity for persons interested to submit data, views or arguments related to the proposed regulations pursuant to . the Pharmacy Act as amended 1972, and the Drug and Cosmetic Act as amended, 1972. [Emphasis added].
A. Proceedings and record are insufficient to subject matter for review.
Mr. Daily, a drug inspector for the board, announced that only one new regulation was proposed under the Drug and Cosmetic Act — Article 9, Section 602.
It is clear that the public hearing did not consider the subject matter stated in the notice as provided by law. Section 67-26-29, N.M.S.A.1953 (Repl.Vol. 10, pt. 1, 1973 Supp.).
“Those who are brought into contest with the Government in a quasi judicial proceeding aimed at the control of their activities are entitled to be fairly advised of what the government proposes and to be heard upon its proposals before it issues its final command.” Morgan v. United States, 304 U.S. 1, 18, 19, 58 S.Ct. 773, 776, 82 L.Ed. 1129 (1937).
Second, the record on appeal does not contain: (1) the proposed regulations to be submitted for consideration at the hearing or whether the regulations were filed under the State Rules Act, or when the regulations were filed; (2) any written notice of the action of the New Mexico Board of Pharmacy as set forth in § 67-26-29, supra, and the notice of the public hearing; (3) any order of the board adopting the regulation in question. The record does not contain any data, views, argument or evidence on Article 9, Section 602, challenged on appeal as provided in § 67-26-29, supra.
Section 67-26-31 (A), supra, provides:
Any person who is or may be affected by a regulation adopted by the board may appeal to the court of appeals for relief. All appeals shall be upon the record made at the hearing by the board and shall be taken to the court of appeals within thirty [30] days after the filing of the regulation under the State Rules Act. [Emphasis added].
Third, § 54-6-43, N.M.S.A.1953 (Repl. Vol. 8, pt. 2, 1973 Supp.) of the “New Mexico Drug and Cosmetic Act” provides in part:
The board shall conform the regulations promulgated under the New Mexico Drug and Cosmetic Act, in so far as practical with regulations promulgated under the federal act.
The record does not show this compliance.
Fourth, the “public hearing” consisted of an informal “mish-mash” of argument, views, letters and memoranda. The hearing was adjourned. What occurred after adjournment is unknown. “We have no indication of what the [board] relied upon as a basis for adopting the regulations. .. . We cannot effectively perform the review authorized . . . unless the record indicates what facts and circumstances were considered and the weight given to those facts and circumstances. We do not hold that formal findings are required.. We do hold the record must indicate the reasoning of the [board] and the basis on which it adopted the regulations. The regulations were not adopted in accordance with law. Accordingly, the regulations are set aside:” City of Roswell v. New Mexico Water Qual. Con. Com’n, 84 N.M. 561, 565, 505 P.2d 1237, 1241 (Ct.App.1972).
Section 67-9-37(A), N.M.S.A.1953 (Repl.Vol. 10, pt. 1, 1973 Supp.) grants the Pharmacy Board power to “adopt, regularly review and revise rules and regulations necessary to carry out the provisions of the Pharmacy Act . . . after hearings open to the public.” Section 67-26-29, supra, of the Uniform Licensing Act provides for notice and hearing for the adoption of regulations.
In 1969, the legislature adopted the “Administrative Procedures Act.” Sections 4-32-1 to 4-32-25, N.M.S.A.1953 (Repl. Vol. 2, 1973 Supp.). Section 4-32-23, supra, makes the Act applicable “to agencies made subject to its coverage by law, or by agency rule or regulation if permitted by law.” Five years have passed and the “Administrative Procedures Act” stands alone, inapplicable to any agency, a lost cause in the mire of agency administration. The legislature has a duty to make this Act applicable. Until it is done, the public is not protected, and courts of review are placed in a judicial chicken pox.
In administration hearings, the board is the judge, the prosecutor and the jury. The board is not an impartial arbiter of the contentions of opposing parties. It is the moving party undertaking to support its own proposed regulations. It should educate itself before establishing regulations which have substantial impact on those regulated. It can make decisions without any evidence, without any duty to make findings of fact, or disclose reasons for the action taken. The board is not qualified to determine the legality of its regulations in reaching a decision. There will be cases in which the board will be in doubt as to the sufficiency of the data, the arguments, the views expressed, and the evidence, if any, to adopt regulations. It will be quite in order for the board to draw attention to these matters in arriving at a decision.
From the proceedings and the record, I am not sure we have jurisdiction to review, but Article 9, Section 602, should be declared invalid. This case should be reversed and all matters placed in status quo.
B. Section 54-6-41(A)(l) is unconstitutional.
Let us assume that point A, supra, is erroneous. The only challenge on appeal is the constitutionality of § 54-6-41 (A) (1) and Article 9, Section 602, set forth in the majority opinion.
Plaintiffs contend that § 54-6-41 (A) (1) of the Drug and Cosmetic Act and regulation 602 promulgated thereunder violate the due process and commerce clauses of the U.S. Constitution by attempting to regulate out-of-state drug manufacturers.
Section 54-6-41 (A)(1), N.M.S.A.1953 (Repl.Vol. 8, pt. 2, Supp.1973) reads as follows:
It is unlawful for any person to sell, dispose of or possess any “dangerous drugs,” unless they are:
(1) manufacturers or distributors, their agents or employees licensed by the board to ship dangerous drugs into the state; . . . [Emphasis added].
It should be noted that this section does not apply to manufacturers or distributors, their agents or employees, who do not ship dangerous drugs into the State.
In State v. Martinez, 48 N.M. 232, 235, 149 P.2d 124, 125 (1944), the court said:
Unless the contrary appears, statutory words are presumed to be used in their ordinary and usual sense and with the meaning commonly attributable to them.
Ordinarily the word “ship” means to deliver to a carrier for transportation.
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The word "ship” has a definite meaning, and there is nothing in the context to indicate that it was used in any other sense than that of a delivery by a consignor to a carrier to be delivered at its destination to a consignee.
It is clear that manufacturers or distributors, their agents or employees, can bring dangerous drugs into New Mexico themselves, in their own method of transportation without a license, if delivery is not made by a carrier for transportation into New Mexico. They are not subject to license by the board. They are not affected by Article 9, Section 602, set forth in the majority opinion. They have the right to deliver the dangerous drugs to any person, firm or corporation in New Mexico free of any violation of § 54-6-41 (A) (1), supra.
One out-of-state, unlicensed manufacturer or distributor, its agents and employees, can bring dangerous drugs into New Mexico and deliver them to licensees, but another such manufacturer or distributor, without a license, cannot if it delivers the dangerous drugs to a carrier for transportation into New Mexico.
The question for decision is whether § 54 — 6—41(A) (1) is discriminatory and denies equal protection of the law when, upon arrival in New Mexico, one truck owned and operated by manufacturer or distributor can be unlicensed, and one truck owned by a common carrier delivering a manufacturer’s or distributor’s product must be licensed.
In my opinion, the statute is unconstitutional.
The Fourteenth Amendment to the Constitution of the United States reads in part:
No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws.
Article II, Section 18 of the New Mexico Constitution reads:
No person shall be deprived of life, liberty or property without due process of law; nor shall any person be denied the equal protection of the laws.
“The denial of equal rights or the imposition of unequal burdens can be pleaded only by those who show that they- belonged to the class discriminated against.” Pueblo of Isleta v. Tondre & Pickard, 18 N.M. 388, 414, 137 P. 86, 95 (1913).
Where the legislative classification confers benefits on one group and not another, it “cannot be done consistently with the Fourteenth Amendment to the Constitution of the United States.” Durand v. Middle Rio Grande Conservancy Dist., 46 N.M. 138, 146, 123 P.2d 389, 394 (1941). Any attempt by the legislature to create a class within a class of nonresidents violates the Fourteenth Amendment to the Constitution. If persons under the same circumstances and conditions are treated differently, there is discrimination and not classification, even where the registration of a motor vehicle owned by a nonresident is involved. State v. Pate, 47 N.M. 182, 187, 138 P.2d 1006 (1943). See also, Board of Education of Vil. of Cimarron v. Maloney, 82 N.M. 167, 477 P.2d 605 (1970).
It should also be noted that the statute applies only to out-of-state manufacturers. It does not apply to in-state manufacturers. This alone makes the statute unconstitutional. Bourjois, Inc. v. Chapman, 301 U.S. 183, 57 S.Ct. 691, 81 L.Ed. 1027 (1936). This case involves “An Act for the Regulation of Cosmetics.” It applied to intrastate commerce. A New York manufacturer was required to obtain registration in Maine. The court said:
There is no discrimination against interstate commerce, since the regulation applies equally to all preparations, whether manufactured within or without the State of Maine.
The annotation in 25 L.Ed.2d 846, 860 (1971) says:
In numerous cases, the Supreme Court has suggested that if “discrimination” against interstate commerce was either the purpose or the effect of state or local regulations pertaining to food, such regulations were violative of the commerce clause.
Compare, Head v. New Mexico Board of Examiners in Optometry, 374 U.S. 424, 83 S.Ct. 1759, 10 L.Ed.2d 983 (1962).
It should be noted that the public is adequately protected against any dangerous drugs shipped into New Mexico. Section 54-6-27(E), (G) and (I), supra, prevents any disposition until the dangerous drug is measured and prescribed by a physician.
After delivery into this State, licensing is provided by § 54-6-41 (A) (2). In order to lawfully sell, dispose of, or possess any dangerous drugs, distributors, hospitals, nursing homes, clinics, pharmacies and authorized retailers in New Mexico must be licensed by the board. No harm results from declaring § 54-6-41 (A)(1) unconstitutional.
C. Article 9, Section 602, is invalid.
Article 9, Section 602, provides in part: No manufacturer . . . who sells or distributes dangerous drugs in this state through any person or media, shall conduct the business of selling or distributing dangerous drugs without obtaining an out-of-state drug license from the board.
This means that any manufacturer, instate or out-of-state, can sell or distribute dangerous drugs in this State without a license, but it cannot conduct the business of selling or distributing dangerous drugs without obtaining an out-of-state drug license from the board. This is a conundrum. But the board has no power to regulate in-state manufacturers.
This article also provides in part:
The license fee for manufacturers and wholesale distributors shall be $100.00
This provision is not applicable to manufacturers and wholesale distributors who do not “ship” dangerous drugs into New Mexico.
Other objections have been raised by appellants with which I agree. But further discussion and analysis is fruitless.